Whether the Hospital was justified in refusing to grant the applicants' request for emails the subject matter of which relates to themselves and their deceased child, all records relating to the Hospital's Clinical Risk Review concerning their child's death, and all records relating to the Hospital's engagement with the Coroner's Office regarding their child's death.

27 September 2018

Background

The applicants were represented by their solicitors. On 26 January 2018, they made an FOI request for copies of all email correspondence the subject matter of which relates to themselves and their deceased child, all records relating to the Hospital's Clinical Risk Review concerning their child's death, and all records relating to the Hospital's engagement with the Coroner's Office regarding their child's death. The Hospital did not issue a decision on the request within the time frame specified in the Act, effectively refusing it.

On 2 May 2018, the applicants sought an internal review of the Hospital's effective refusal of their request. On 1 June 2018, the Hospital wrote to the applicants in relation to their FOI request. The letter told them that no emails have been identified, that the draft review report is in anonymised format and does not refer to them by name, and that the final part of the request should be pursued through the Coroner's Office because such records are part of the coronial process. It did not refer to any provisions of the FOI Act or explain why they applied, or give the applicants details of their rights of appeal.

On 12 July 2018, the applicants sought a review by this Office of the Hospital's effective decision.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the Hospital, and the applicants. I note that the applicants did not reply to this Office's letter to them of 10 September 2018. I have had regard also to the provisions of the FOI Act.

Scope of Review

This review is confined to whether or not the Hospital has justified its effective refusal of the applicants' FOI request.

Findings

Under sections 13(2)(d) and 21(5)(c) of the FOI Act, where an FOI body decides to refuse to grant a request whether wholly or in part, the notification of the original or internal review decision shall specify:

· the reasons for the refusal;
· any provisions of the FOI Act pursuant to which the request is refused;
· the findings on any material issues relevant to the decision; and
· particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.

The Hospital did not issue any original decision in this case. Its letter to the applicants of 1 June 2018, which under normal circumstances would be taken to be its internal review decision, does not contain the required level of detail set out above. Thus, I do not consider that letter to be a valid internal review decision that is capable of review by this Office. The letter also suggests that the Hospital took a particularly narrow interpretation of the second part of the request.

Furthermore, the Hospital now confirms that it holds emails covered by the first part of the request. I should say I am satisfied that it also holds records covered by the other parts of the request.

I am sorry if this causes further upset to the applicants but the fact of the matter is that because of the Hospital's handling of the FOI request, it would be inappropriate for me to conduct a review at this stage. To examine the matter properly would amount to the making of a first instance decision which is not the Commissioner's role under the Act. It is clear to me that the Hospital has not examined the records covered by the request and made proper decisions under the Act. It would not be appropriate for me to make a first instance decision where the Hospital has not decided whether the records are exempt under the provisions of the FOI Act or considered any relevant public interest tests.

The most appropriate decision for me to make in the circumstances is to annul the Hospital's effective refusal of the applicants' request and remit it for fresh consideration by the Hospital in line with the requirements of the FOI Act. The effect of this is that the Hospital is required to make a new, first instance, decision on all records it holds that are covered by the request i.e. any such records that existed at the date of receipt of the request. I would also draw the Hospital's attention to the broad nature of all three parts of the request. It would not be correct, for instance, to treat the second part of the request as seeking only the draft review report; neither does a record have to name a person in order for it to relate to him or her. Nor is it correct to direct the requesters to make an FOI request to the Coroner's office in relation to the third part of their request. The Hospital should deal with the application of the FOI Act to any records it holds that relate to the coronial process.

Furthermore, in making its fresh decision, the Hospital should have regard to the requirements of section 13 of the FOI Act, and also the Central Policy Unit (CPU) website which details, along with other guidance material, how public bodies should process FOI requests generally (see http://foi.gov.ie/guidance/manuals/).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Hospital's effective refusal of the applicants' request. In the circumstances of this case, a remittal of that request is appropriate. I direct the Hospital to undertake a fresh decision making process on the request, and to inform the applicants of the outcome in accordance with the requirements of the FOI Act.

Given the Hospital's treatment of the request and the time that has elapsed since it was made, I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Hospital to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.

However, if the Hospital accepts my decision, I hope that it will start the fresh decision making process as soon as possible rather than waiting for the statutory deadline to expire.

Comment

I am disappointed at the treatment of the FOI request by the Hospital which, as an FOI body for many years, is very familiar with what both the Act and this Office requires in relation to processing of requests/reviews. It also has access to extensive training and guidance materials provided by the CPU of the Department of Public Expenditure and Reform and by this Office (www.oic.ie).

Applicants are entitled to have their requests for access to records properly responded to by designated officers of FOI bodies and I cannot understand why the Hospital would see itself as falling outside of the statutory requirements. I am bringing what happened in this case to the attention of the Master of the Hospital. Should the applicants be dissatisfied with the Hospital's fresh decision and internal review decision on foot of this decision and find it necessary to apply to this Office for external review in due course, I will do my best to ensure that any further review is given priority.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.